TORLEY & ABRAHAM

[2016] FCCA 3094

FEDERAL CIRCUIT COURT OF AUSTRALIA

TORLEY & ABRAHAM [2016] FCCA 3094

Catchwords:
FAMILY LAW – Interim parenting – best interests of child.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 61DA(3), 65D, 65DAA(3)

Cases cited:

Banks & Banks [2015] FamCAFC 36

Goode & Goode (2006) FLC 93-286

Marvel & Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348

Applicant: MS TORLEY

Respondent: MR ABRAHAM

File Number: PAC 6008 of 2015

Judgment of: Judge Newbrun

Hearing date: 21 November 2016

Date of Last Submission: 21 November 2016

Delivered at: Parramatta

Delivered on: 21 December 2016

REPRESENTATION

Solicitors for the Applicant:	White & Associates
Solicitors for the Respondent:	Rafton Family Lawyers
Solicitors for the Independent Children's Lawyer:	O'Donnell & Associates Family Lawyers

ORDERS PENDING FURTHER ORDER:

1. That the child, X, born (omitted) 2010 (hereinafter referred to as “the child”) shall live with the Father.

2. The child spend time with the Mother, as agreed, and failing agreement, the child spend time with the Mother supervised by, and in the presence of the Father, on one afternoon each week for at least 4 hours concluding no later than 7:30pm, with such afternoon to be selected by the Mother and communicated to the Father beforehand.

3. That for a period of 12 months from the date of these orders:

   (a)That within 24 hours after a request by the Independent Children’s Lawyer to the Mother’s solicitor the Mother is to submit herself to urine analysis;

   (b)That such urine analysis is conducted in accordance with the Australian/New Zealand Standard 4308:2001: Procedure for the collection, detecting and quantitation of drugs of abuse in urine.

   (c)That the mother do all things necessary to authorise her solicitor to immediately provide to the Father’s solicitor and the Independent Children’s Lawyer a copy of any and all drug screening reports.

4. The Father shall ensure that the Mother is kept informed of:

   (a)Any medical problems or illnesses suffered by the child while in the Father’s care

   (b)Any medication that have been prescribed for the child

   (c)Any social, school, or religious functions which the child is to attend

   (d)The residential address of the father and particulars of the others who may reside with the child

   (e)Any other matter relevant to the child’s welfare

5. That for the purposes of communicating information between the parties the Mother and the Father shall:

   (a)Communicate by telephone matter of an urgent nature and otherwise.

   (b)Communicate by SMS and text about all other matters.

6. That each party shall be restrained from making critical or insulting remarks in relation to the other parent in the presence or hearing of the child and that each party shall do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.

7. That each party shall be restrained from discussing these court proceedings with each other or with any other person in the presence or hearing of the child.

8. That each party advise the other party and keep the other party advised of their current contact address and contact telephone number (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details within seven days of such change occurring.

9. That each party namely, Ms Torley and Mr Abraham and their servant or agents be and are hereby restrained from removing and/or attempting to remove or causing or permitting the removal of the child X born (omitted) 2010 (female) to be removed from the Commonwealth of Australia.

10. That the said child, X born (omitted) 2010 (female) be and is hereby restrained from leaving the Commonwealth of Australia.

11. All officers of the Australian Federal Police are requested to give effect to these orders by placing the name of the said child, X born (omitted) 2010 (female) on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the child’s name on the Watch List for a period of three years.

12. Upon expiration of the period referred to in Order 11 of these orders, and subject to any further order of the Court, the Australian Federal Police will cause the removal of the said child’s name from the Family Law Watch List.

13. Within seven days of the date of these orders the Father shall deposit with his current solicitors any and all passports of X born (omitted) 2010 (female), including any passports issued by a country other than Australia.

14. The Father’s current solicitors must hold any passports of their client, Mr Abraham so deposited in safe custody until further order.

15. That within seven days of the date of these orders the Mother and Father are to provide the Independent Children’s Lawyer with the names and address of their current treating General Practitioner and any treating psychologist or counsellors (hereinafter referred to as “therapists”), and the names and addresses of all General Practitioners, medical specialists and therapists whom the Mother and Father have attended upon from January 2015 to date.

16. That within seven days of the date of these orders the Mother and Father are to enrol in a “Parenting after Separation” course or similar course provided by the Family Relationship Centres at either (omitted) or (omitted) and they shall

    (a)Attend the next available intake for that course, and

    (b)Provide their solicitors with confirmation of their enrolment and completion of such a course

17. Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Torley & Abraham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 6008 of 2015

MS TORLEY

Applicant

And

MR ABRAHAM

Respondent

REASONS FOR JUDGMENT

Introduction

1. This interim hearing related to the child, X born (omitted) 2010.

2. The Court respectfully adopts the Short History and Chronology set out in the Independent Children’s Lawyer’s (“ICL”) case outline, exhibit B.

3. The Mother’s case outline was exhibit A. She seeks interim orders, as set out in the case outline, that the child spend time with her on each weekend from 4:00pm Friday to 6:00pm Sunday, for periods in the school holidays, and on special days.

4. The Father’s case outline was exhibit D. He seeks interim orders, as set out in his case outline, that the Father have sole parental responsibility for the child, the child live with the Father, the Mother spend time with the child, as agreed, and any time spent with the child by the Mother be supervised by the Father. The Father also seeks an order that the Australian Federal Police cause the removal of the child’s name from the Family Law Watch List.

5. The ICL, in her case outline, exhibit C, sought interim orders, inter alia, that the child live with the Father, and spend supervised time with the Mother at the (omitted) Children's Contact Service on at least one occasion each fortnight. The ICL sought interim orders placing the child on the Family Law Watch List.

6. The Mother’s material relied upon is her Affidavits filed 16 March 2016 and 17 November 2016. The Father’s material is set out in his Case Outline, exhibit D. The ICL relied upon the Child Inclusive Conference Memorandum of 15 June 2016. The ICL and the Father relied upon exhibits E – H inclusive being subpoenaed documents.

7. The parties separated initially in October 2014 under the one roof. The parties separated finally in about September 2015. The Mother at that time left the family home with the eldest child Masoud, who is now aged 18 years. The subject child stayed living with the Father and has stayed living with the Father to the present time.

8. The Father was born in 1956 and is presently aged 60 years. The Mother was born in 1973 and is presently aged 43 years.

9. The Mother is studying (omitted) at (omitted) TAFE; she attends TAFE on Monday, Wednesday and Friday from 9:00am to 2:00pm. She is not in paid employment.

10. Since about December 2015 to about March 2016, according to the Mother, she visited the subject child at the Father’s rented home almost every day. The Mother asserts in her Affidavit filed on 16 March 2016, that she usually arrived at about 6:00pm and she stays there until the child goes to sleep.

11. In the Mother’s Affidavit filed on 17 November 2016 she asserts that she usually visited the child at the Father’s residence at about 3:00pm or 4:00pm and stayed until the child went to bed at about 7:30pm. According to the Father, following final separation, eventually the Mother, having adjusted the times in which she visited the child at the Father’s residence, would visit at any time between 7:00am and 7:00pm on an almost daily basis.

12. The Father has insisted that the child spend time with the Mother supervised by the father at his home.

13. The Mother refers to previous conversations with the Father where he has expressed an interest in wanting to go live overseas, either in (country omitted) or (country omitted) and he wants to take the child with him. In early December 2015, the Mother noticed the Father had bags packed and had also included clothing for the child. The Mother is “terrified” that the Father may attempt to take the child overseas in the very near future. The Mother states the Father has an Australian passport and has a separate passport for the child. She states the Father had no ties in Australia, that all his family live in (country omitted) with the exception of the party’s eldest daughter, who apparently does not speak to the Father and the eldest son. She states that the father does not work.

14. The Mother asserts that throughout the marriage and up to separation she was the primary carer of the three children including the subject child. The Father, on the other hand, asserts that up to the final separation the parties shared responsibilities for the care of the subject child.

15. According to the Mother, the child informs the Mother that she doesn’t want the Mother to leave her and says, “Mum can you please wait until I go to sleep and then you can go.” The Mother states that the child wants to live with the Mother.

16. The Mother alleges that the Father has mental health problems. She asserts, inter alia, that their son told her that the Father had been hitting himself on the head and on his face when he became angry. The Mother asserts that during the marriage the Father assaulted her. He punched her around and threw a glass at her. Those assaults occurred, according to the Mother, before the parties came to Australia. The Mother asserts that the Father tried to kill the eldest daughter when the child was 14 years of age. The Mother asserts that the Father also tried to hang that child when she was 13 years of age. The Court notes that the eldest child is now aged about 24 years and is married. The Mother asserts that the eldest daughter saw the Father striking the subject child on the face in early 2013. The Mother asserts that the Father has threatened to hurt the Mother, and the child, if the Mother tries to have the child live with her.

17. The Mother asserts that whenever she goes to the Father’s house he does not ever talk to her and the Mother doesn’t talk to him.

18. The Father alleges that during the party’s relationship the Mother would often spend the money that he had earned on marijuana, and was spending up to $500 per fortnight on marijuana. The Mother admits that she did smoke marijuana. She alleges that it was the Father who introduced her to this drug after the parties arrived in Australia. The Mother asserts that she used to smoke marijuana because she suffered from back pain and because of the depression she was suffering due to the Father’s treatment of her. She asserts, in paragraph 12 of her Affidavit filed on 17 November 2016, that she ceased using marijuana in October 2015 and she no longer takes any drugs. Later in her Affidavit she admits that at a party about three months ago, she did smoke marijuana.

19. In about August 2016, the Mother moved from (omitted) to (omitted). The Mother states it is now difficult for her to travel to (omitted) where the Father lives. She does not have a motor vehicle, and has to get public transport. Accordingly, the Mother states she now only visits the child about once a week. She arrives at about 6:00pm and leaves about 9:00pm. The travel time from (omitted) to (omitted) is about 1.75 hours.

20. The Mother, in her Affidavit filed on 17 November 2016 states that the eldest son now lives with the Father.

21. The Father asserts that the Mother has suffered mental health issues since the parties arrived in Australia in about 2007. He asserts the Mother has suffered panic attacks associated with loss of memory. He asserts in 2008, and 2009 he was calling an ambulance once every fortnight for the Mother. He asserts that following the Mother waking from her panic attacks she would punch walls and lose control and had to be restrained. He refers to the Mother suffering a panic attack in 2015 when the parties were living together, when the Mother fell unconscious to the ground. The Father took the mother to (omitted) Hospital. The Father asserts that prior to the child being born, around 6 years ago, the Mother was found intoxicated in a park and she was found to have cut both her wrists and her chest. He asserts the Mother was then taken to (omitted) Hospital. The Father asserts there were two occasions when the parties were living together when the Mother locked herself in a room and self-harmed. The Father says, on these occasions, he called an ambulance who took the Mother to (omitted) Hospital. He asserts that the Mother has received many referrals from (omitted) Hospital, and from (omitted) Hospital to attend a GP but the Mother has constantly refused to follow-up with those referrals.

22. The Father states that he does not currently suffer from any mental health issues. He states that he attended a doctor about 3 to 4 months ago regarding stress relating to the subject child. He ingested medication for a short period.

23. The Mother, for her part, asserts that she admits suffering depression when she arrived in Australia in about 2007. She recalls being admitted to (omitted) Hospital for about two days. She states that she returned to (country omitted) for a holiday in about 2008, she was there for about two months. When she returned to Australia she had overcome her depression and, “I haven’t had any problem since then, except as stipulated in clause 29.”

24. In paragraph 29 of the Mother’s Affidavit filed on 17 November 2016, she states that in about 2009 she had major problems with the Father. They argued constantly and the relationship almost broke down. As a result of this, because the Mother didn’t have any family in Australia and couldn’t speak English she felt totally alienated and she suffered depression, but not nearly as bad as it was before she went to (country omitted) in 2008. The Mother does deny that she ever punched walls. She states that she was taken to the hospital on several occasions, but states that this was before she went back to (country omitted) in 2008. The Mother states that she did lose consciousness but does not recall having to be restrained. Again she states that these incidents occurred before she went back to (country omitted) in 2008.

25. The Mother denies that the Father recommended that she see a psychologist. She states in paragraph 26, that she did see a psychologist.

26. The Mother states that she did faint on a few occasions but that was because of “a medical condition and certainly not from a panic attack.” She states that she had brain scans but that “they were unable to find any reason for my fainting.”

27. The Mother states that on one occasion she did lock herself in a room and self-harmed, but that was because of her depression caused by arguments between the parties.

28. As to the Father’s statement, that the Mother has received many referrals from hospitals to attend a GP, the Mother states that she has seen a psychologist, but she has not had to be seen by a psychologist since the subject child was born.

29. The Father denies ever physically assaulting the Mother. He admits that they engaged in verbal arguments. The Father states that he has not physically hurt any of the children. The Father states that the parties used to live in (country omitted) in a high-rise building with many people around them. In that country, if anyone was found to be engaging in family violence, as alleged by the Mother, it would be a serious offence, and the Father would be in serious trouble. The Mother, for her part, submits that because male dominance is accepted in that country, the Father was able to engage in violent activity against her and the children.

30. The Father states that during the parties’ cohabitation, the Mother was smoking marijuana daily and was smoking large quantities. He states that he had seen the Mother on many occasions smoke around the child, and he would always ask her to at least take it outside away from the children. The Mother, for her part, admits that she used to consume marijuana when she was living with the Father for the back pain that she was suffering. She does not deny that she ever smoked around the child. The Mother states that the Father used to supply her with marijuana for her back pain.

31. The Father states during the time that the parties lived together, the Father was the Mother’s carer due to some serious back issues that the Mother suffered from.

32. The Father states that he is happy for the Mother to spend as much time as she would like with the child, but he simply wants to ensure that the child is safe while the Mother is spending time with her. He states that he has concerns regarding the Mother’s mental health and history of drug use. The Father states that he wants the Mother to undergo a psychological assessment “so that she can properly address and treat any issues that she may have.”

33. The Father states he has no intention to remove the child from Australia. He states the child loves living in Australia, and is well settled both within the home and within her school. He stated he does not wish to leave Australia. He stated he doesn’t have a financial ability to take himself or the child out of Australia. He does state that in the future, if he had sufficient money, he would like to take the child on a pilgrimage outside of Australia.

Subpoenaed material

1. The Court has considered all the subpoenaed material in exhibits E to H.

2. The Family and Community Services (“FACS”) subpoenaed material, sleeve 3, refers, inter alia, to a contact record in about July 2010, just before the birth of the child. It refers to the mother’s presentation with her depression and being treated by a psychiatrist. It is noted that the Mother stated that the physical violence of the Father has stopped “as the father is aware of Australian law and knows he will get into trouble.”

3. In Exhibit F, the subpoena to the New South Wales Police, there is reference to an incident on about 19 September 2008; the Mother is stated to be the accused. It is alleged that the Mother threatened to kill the family and grabbed a kitchen knife from the sink and held it out whilst approaching the Father. The Mother was arrested and interviewed. The Mother denied she made threats to kill the family or assault the Father. An incident in November 2010 refers to the Mother suffering from anxiety and depression, and taking medication for same. The Mother accused the Father of smashing two kitchen cups in front of the Mother. The Father admitted same to the Police. In January 2010, a Police entry refers to the Mother inflicting a laceration to her left wrist in a suicide attempt; she had ingested medication and drank half a bottle of bourbon. The Mother was conveyed to (omitted) Hospital. An incident noted in January 2008, refers to the Mother bleeding from the wrists lying on a bed. The Mother was walked to an ambulance and was conveyed to hospital.

1. The subpoenaed records from (omitted) Hospital, exhibit G, inter-alia, refer to in November 2007 an admission by the Mother after a psychosis episode. The triage entry states the patient has not taken antidepressants for two weeks. She was hitting herself and family members tonight.

2. An entry in March 2009 refers to a self-harm incident involving the Mother. She cut herself after having an argument with the Father. A superficial laceration was noted to both wrists. Sutures were applied. The patient was reviewed by the acute mental health team. She refused to come back for a follow-up, stating that she prefers to see her private psychiatrist in (omitted) who can speak her language.

3. An entry in January 2009 refers to the Mother having taken an overdose of Xanax and writing a suicide note.

4. An entry for January 2010 refers to the Mother being brought in by an ambulance accompanied by the Police. The Mother had been combative and had struck an ambulance officer. She had been picked up from a park where she was found to be drunk; she had consumed a half bottle of bourbon and had cut her left wrist. This was in response to a domestic dispute. The patient was stated to have a long history of depression with previous similar episodes.

5. An entry for April 2014 refers to the triage presenting information being “self-harm intending to end life”, “used? Razor blade to left wrist. Bandage, some blood noted to dressing.” The Mother smelt of alcohol and was aggressive at the scene. The clinical summary noted that the Mother had been in an argument with the Father. It was noted that she had been diagnosed with depression by her GP and was on antidepressant medication for the last six months, which were helping with her symptoms. The Mother denied any self-harm/suicidal ideation. The notes state the Mother was seen by the mental health team. She was discharged from a mental health point of view. She was to have a GP follow-up and referral to a (language omitted) speaking psychologist.

6. The clinical notes for May 2010 under the heading “Mental Health” refers to the Mother presenting with very low effect. She has had a history of mental health issues and has had interventions from the Acute Mental Health Team at (omitted) Hospital. The Mother has had a history of self-harm and suicidal ideation. The Mother states she has drunk alcohol on occasions wanting to hurt herself.

7. The psychosocial assessment of the hospital of September 2010 refers, inter alia, to the Father hitting the Mother when the parties were living in (country omitted) but not while in Australia. It states that the Father had been abusive to their daughter. It states that the Mother denies any abuse of either herself “or her daughter since coming to Australia.”

8. A hospital entry for April 2015 refers to the Mother being asked about her Tetrahydrocannabinol (“THC”) use. It is stated that the Mother acknowledges using THC. It states that the Mother acknowledges she smokes 2 to 3 times a week to help with her pain. She smokes $10-$20 worth of THC. The Mother states that she cares for her daughter along with the Father. She states that the Father is her carer.

9. The subpoenaed records from the child’s public school refer positively to the child’s school life. It states, inter alia, that the child has a very bubbly personality and is always happy. There is nothing that concerns the teacher regarding the child’s behaviour or her emotional well-being. It is stated that the child speaks positively about her family including both her parents.

10. The Child Inclusive Conference (“CIC”) memorandum to the Court of 15 June 2016 refers, inter alia, to the Mother not attending. It refers to the Father stating that he did not currently communicate with the Mother because there was nothing to talk about. He stated that he did not speak with the Mother when she was spending time with the child at his house.

11. The Family Consultant stated that the child was interviewed. The child stated, inter alia, that she lives with the Father and her brother. The child stated that she liked that both her parents cooked her food. She stated that the Mother visited her at the Father’s house sometimes. She stated that she enjoyed these visits with the Mother. She said that she felt sad when the Mother left after the visit was finished. She said that she felt worried for the Mother when she left, and that she wished the Mother could stay with her. The child stated that when she lived with the Mother, the Mother kept “dying herself.” By way of explanation, the child stated that the Mother was cleaning her room when her “hand cracked, she was crying, and she went to the hospital.” The child stated that on another occasion the Mother “slipped over and died; and the police, in the ambulance, took her to hospital.” The child said that she would like to spend the same amount of time with the Mother as she did already. The child appeared very relaxed and comfortable throughout the observation with the Father.

Submissions of the parties

1. The ICL submits that there is no up-to-date medical evidence from the Mother as to her physical or mental health. She has not participated in drug testing. She doesn’t particularise her past mental health issues. The ICL refers to the last (omitted) Hospital admission for the Mother in April 2014. The ICL refers to the Mother’s failure to attend the CIC conference on 9 June 2016.

2. The ICL refers to the lack of any independent evidence as to the Mother’s present capacity to parent the child. She refers to the Mother’s evidence that the Mother had not seen the child since about August 2016. The ICL stated that there was no independent evidence before the Court of the child’s present relationship with the Mother.

3. The ICL submitted that it was beneficial for the child to see the Mother away from the father within a supervised setting. Also, the Court would have the benefit of the relevant Contact Centre reports of the child’s visitations by the Mother.

4. The ICL submitted that it would have been helpful for the Mother to have been assessed by a clinical psychologist or psychiatrist, who had been provided with relevant subpoenaed material from the NSW Police and (omitted) Hospital. The ICL submitted that the Mother might attend upon a GP and obtain a Mental Health Care Plan to obtain 10 sessions with a psychologist.

5. The Mother submitted, inter alia, that the Mother’s Affidavit evidence indicates that the Mother has a close and loving relationship with the child. She submitted that in the Father’s Response filed 13 April 2016, the Father had been content for the elder son, aged 18 years, to supervise the child’s time with the Mother. (In this context, the Court notes that the Father told the Family Consultant at the CIC that he did not consider it appropriate for the elder son to supervise the child’s time with the mother given his young age, and his need to focus on his studies.)

6. The Mother submitted that the hospital entry for April 2014, involving a self-harming incident, was of some antiquity. The Mother submitted that the evidence relating to her marijuana use was irrelevant and she noted that the Father had introduced her to the substance.

7. The Mother submitted that her backup proposal was that she spend time with the child at the Father’s residence each week, on any weekday, from after school to 6:00pm or 7:00pm.

8. The Father submitted, inter alia, that the Mother’s evidence asserted that her mental health problems subsided after about 2008. There was no reference by the Mother to the self-harm incident and admission to hospital in April 2014.

9. The Father submitted that there is no objective evidence before the Court as to the current state of the Mother’s mental health. He is concerned about the Mother’s use of marijuana, possibly in the presence of the child. He submitted that it would be of assistance to the Court if the Mother was to attend upon a GP, obtain a Mental Health Care Treatment Plan, and attend upon a psychologist for assessment, with such psychologist having the benefit of relevant subpoenaed documents.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the problems associated with making findings on disputed evidence as follows:

   [120]As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at [100] their Honours amplified their comments and said:

   “The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.” Of this, the Full Court in Eaby said at [80],332:

   As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

3. The court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks v Banks (2015) FamCAFC 36, especially at paragraph 46 to 52.

   Consideration of the s 60CC factors that are relevant

   [46]. In order to determine whether it is in the child’s best interests to remain in Thailand pending trial, we must consider matters arising under s 60CC.

   [47]. As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.

   [48]. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   [49]. Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.

   [50.] When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

   [51]. In our view, the undisputed facts here lead inexorably to the conclusion that it would not be in the child’s interests to be required to move to Australia pending the trial. In arriving at this conclusion we ought to record, without condescending to particulars, that it is arguable the primary judge was led into error in coming to a different conclusion by the way in which the case was presented to her.

   [52]. In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.

4. Section 60B of the Family Law Act 1975, (Cth), (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

5. In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

6. Section 60CC of the Act provides that in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

7. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA (3).

8. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

9. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60 CC, the court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60 CC, or impracticable.

10. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the court may make such orders in the discretion of the court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

THE BEST INTERESTS OF THE CHILDREN

Section 60 CC considerations

Subsection (2) (a) - The benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration

1. The child has a meaningful relationship with the Father and would benefit from a continuance of that relationship. Noting the child’s statements to the Family Consultant at the CIC, in particular, the Court is prepared to infer that the child probably still retains a meaningful relationship with the Mother and would benefit from a continuance of that relationship.

2. The parties are in dispute as to the Mother’s assertion that she was the primary carer of the child up to the date of the final separation. It is clear that post separation the Father has been the primary carer, however the Mother has maintained fairly regular contact with the child, albeit spending time with the child at the Father’s residence in the presence of the Father.

3. The Court is satisfied at this interim stage that the child’s likely meaningful relationship with the Mother should be able to be maintained if the child continues to spend regular time with the Mother at the Father’s residence in the presence of the Father.

(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The Court, at this interim stage, is concerned that the Mother’s Affidavit evidence does not address the objective hospital evidence relating to her past mental health issues, including admissions to hospital following self-harming incidents, on occasions after the Mother’s return from (country omitted) in about 2008 up until April 2014. For example, the Mother’s Affidavit evidence does not address the April 2014 hospital admission relating to a further self-harming incident, and apparently intending to take her life.

2. Whilst the Court acknowledges that these self-harming incidents, with consequential admissions to Hospital, occurred within the context of the parties’ conflict whilst living together, it is of some concern to the Court that the Mother significantly fails to address these incidents. It is also of some concern, in this context, that the Mother states that she has not had to see a psychologist since the child was born in (omitted) 2010. Again, the Court notes that, in relation to the hospital admission in April 2014, that the hospital records indicate that the Mother was to have a GP follow-up and referral to a (language omitted) speaking psychologist; the Mother’s evidence indicates that she had not seen a psychologist since the child’s birth.

3. The Court notes, in this context, that the Mother has not obtained evidence from a medical practitioner, psychologist or psychiatrist, in relation to the present status of her mental health, noting her past history of mental health issues, including self-harming incidents.

4. The Court notes that the Mother’s evidence is sparse relating to what social or support networks she has presently, including how she supports herself financially.

5. At this interim stage, noting the above matters and taking a cautious approach, the Court is not prepared to infer that the Mother’s mental health is sufficiently stable to justify spending unsupervised time with the child by reason of the fact that the last relevant admission to hospital was in April 2014, or that there would appear to have been an absence of conflict between the parties since separation to date.

6. At this interim stage, noting the above matters, the Court is of the view that there is an unacceptable risk to the child of neglect in spending unsupervised time with the Mother, and a corresponding need to protect the child.

7. The Court notes that there are allegations made by each party against the other relating to historical family violence perpetrated by one against the other. The Court refers to the evidence in this context. The Court notes that the Mother does not seek an order that the child live with her in this context. The Court notes the positive statements by the child to the Family Consultant about each parent. The Court notes that the Mother’s time spent with the child at the Father’s residence post separation has not been the subject of any family violence allegations. There is no need to protect issue arising in this context.

1. As to the Mother’s marijuana use, the Mother’s Affidavit evidence is somewhat unsatisfactory in that she states that she ceased using marijuana in October 2015 and no longer takes any drugs, but in the same Affidavit states that at a party about three months ago she did smoke marijuana. Perhaps this latter evidence of the Mother can be discounted if it can be confined to recreational use outside the Mother’s residence. Of more concern however, is the (omitted) Hospital entry relating to the Mother presenting at that hospital with back pain as late as April 2015, and the Mother’s admission shortly thereafter in April 2015 relating to the Mother’s continued marijuana use 2- 3 times per week. The Mother’s affidavit evidence refers to her past marijuana use to assist in alleviating her back pain. The (omitted) Hospital notes relating to the Mother’s continued use of marijuana begs the question as to whether the Mother probably continues to smoke marijuana to assist in alleviating her back pain. There is no up-to-date medical or other health professional evidence before the Court relating to the Mother’s back condition, including how the Mother manages any present existing back pain. The Father’s Affidavit evidence refers to the Mother consuming marijuana around the child which the Mother did not expressly deny in her Affidavit in reply. Separately to the above need to protect issue relating to the Mother’s mental health, the Court, at this interim stage has a concern that the Mother may well ingest and be affected by marijuana if caring for the child unsupervised.

3) (a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The Court refers to the child’s remarks to the Family Consultant in relation to both parents. It refers to the child’s comment to the Family Consultant that she would like to spend the same amount of time with the Mother as she did already. It would appear that the child might well have been exposed to the Mother’s adverse mental health state at times when she was taken to hospital from the Father’s residence. The Court notes that the child did not inform the Family Consultant that she wished to live with the Mother. The Court gives some weight to the child’s views whilst noting her tender age.

3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The Court refers to the meaningful relationship primary consideration above.

(3) c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity: to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child.

1. Post separation, the Father decided to require the Mother to spend time with the child at his residence in his presence. The Mother experienced practical difficulties, including travel difficulties, in spending as much time with the child as she would have liked to.

3) ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

1. The Mother has not been in significant paid employment and has not been able to significantly contribute to child maintenance.

(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: i)     either of his or her parents; or ii)     any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

1. The Court notes that the Mother has been able to spend regular time with the child post separation at the Father’s residence, and it would appear, in the absence of significant conflict between the parties. The Court is concerned that the child may well experience a significant absence in spending time with the Mother if the Mother is required to spend time with the child at a Contact Centre, noting the delays of being admitted to a supervision program at such a centre.

2. The Court notes the Mother’s back up proposal which is that she be permitted to continue to spend time with the child at the Father’s residence.

(3) e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. The Court notes that the Mother will be required to utilise public transport from her residence at (omitted) to the Father’s residence at (omitted) if she is to continue to spend time with the child at the Father’s residence.

(3)(f) The capacity of: each of the child’s parents; and any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.

1. Subject to the need to protect primary consideration issues discussed above, each party would appear to have such capacities.

3) (g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The Court refers to the need to protect primary consideration issues discussed above pertaining to the Mother.

3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right.

1. Not applicable.

3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

1. Subject to the need to protect primary consideration issues discussed above, pertaining to the Mother, each parent’s attitude to the child and to the responsibilities of parenthood demonstrated by them would appear to be satisfactory.

3)(j) Any family violence involving the child or a member of the child’s family

1. The Court refers to the need to protect primary consideration discussed above. The Court notes that the Mother’s statements to third parties of the Father’s alleged family violence only occurred before he came to Australia in 2007.

3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the court in, or in proceedings for, the order; any other relevant matter.

1. There appears that there may have been family violence orders imposed through the Police against each of the parties, but some years ago.

3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. Not applicable.

3) (m) Any other fact or circumstance that the court thinks is relevant

1. The Court previously directed that the Mother file Affidavit evidence from the eldest children of the parties relating to their capacity to supervise her time with the child but that such Affidavits were not filed by the Mother.

2. The Court notes that the Mother criticises the Father in relation to the child’s sleeping arrangements. On the evidence before the Court, the Court is not satisfied that this presents a significant issue for the child presently.

Equal shared parental responsibility: section 61DA(1) and (2)

1. The Father seeks a sole parental responsibility interim order for the child. The Mother seeks no specific order. The ICL similarly does not seek any specific order in this context. The Court is not satisfied at this interim stage that it is in the best interests of the child for the Father to have sole parental responsibility.

Equal time

1. The Court refers to the need to protect primary consideration discussed above; at this interim stage, it is not in the best interests of the child to live in an equal time arrangement, nor spend substantial and significant time with the Mother. Further, and in any event, there is a practicability issue noting that the Mother lives in (omitted), does not have a motor vehicle and is relying upon public transport and the Father lives in (omitted) with the child attending primary school at (omitted) near (omitted).

Summary

1. At this interim stage, evaluating the above considerations under section 60 CC of the Act, it is in the best interests of the child that the Court makes orders as follows:

   a)The child live with the father.

   b)The child spend time with the Mother, as agreed, and failing agreement, the child spend time with the Mother supervised by, and in the presence of the Father, on one afternoon each week for at least 4 hours concluding no later than 7:30pm, with such afternoon to be selected by the Mother and communicated to the Father beforehand.

   c)The following orders are made in accordance with exhibit C (ICL’s proposed orders) proposed orders 2, 4, 5, 6, 7-15, 16 (but change “seven days” to “21 days”) 17-18. 

I certify that the preceding ninety six (96) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 13 December 2016